Cross-examination - Variations By Jurisdiction

Variations By Jurisdiction

In the United States federal courts, a cross-examining attorney is typically not permitted to ask questions that do not pertain to the testimony offered during direct examination, but most state courts do permit a lawyer to cross-examine a witness on matters not raised during direct examination. Similarly, courts in England, Australia, and Canada allow a cross-examiner to exceed the scope of direct examination.

Since a witness called by the opposing party is presumed to be hostile, cross-examination does permit leading questions. A witness called by the direct examiner, on the other hand, may only be treated as hostile by that examiner after being permitted to do so by the judge, at the request of that examiner and as a result of the witness being openly antagonistic and/or prejudiced against the opposing party.

The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony. The advocate Edward Marshall-Hall built his career on cross-examination that often involved histrionic outbursts designed to sway jurors. Most experienced and skilled cross-examiners however, refrain from caustic or abrasive cross-examination so as to avoid alienating jurors. John Mortimer, Queen's Counsel, observed that "cross-examination" was not the art of examining crossly. Indeed the good cross-examiner gets a witness to assert to a series of linked propositions culminating in one that undermines that witnesses' evidence rather than pursuing an antagonistic approach.